1

Utilitarian theory of
law
Introduction 2

Utilitarianism is one of the most powerful and persuasive approaches

to normative ethics in the history of philosophy. Though not fully
articulated until the 19th century, proto-utilitarian positions can be
discerned throughout the history of ethical theory.
Though there are many varieties of the view discussed, utilitarianism
is generally held to be the view that the morally right action is the
action that produces the most good. There are many ways to spell
out this general claim. One thing to note is that the theory is a form
of consequentialism: the right action is understood entirely in terms
of consequences produced. What distinguishes utilitarianism from
egoism has to do with the scope of the relevant consequences. On
the utilitarian view one ought to maximize the overall good that
is, consider the good of others as well as one's own good.
Classical Utilitarian 3

The Classical Utilitarians, Jeremy Bentham and John Stuart Mill,

identified the good with pleasure, so, like Epicurus, were hedonists
about value. They also held that we ought to maximize the good,
that is, bring about the greatest amount of good for the greatest
number.
Utilitarianism is also distinguished by impartiality and agent-neutrality.
Everyone's happiness counts the same. When one maximizes the
good, it is the good impartially considered. My good counts for no
more than anyone else's good. Further, the reason I have to
promote the overall good is the same reason anyone else has to so
promote the good. It is not peculiar to me.
Jeremy Bentham 4

He promulgated the principle of utility as the standard of right

action on the part of governments and individuals.
Actions are approved when they are such as to promote happiness,
or pleasure, and disapproved of when they have a tendency to
cause unhappiness, or pain (PML).
Combine this criterion of rightness with a view that we should be
actively trying to promote overall happiness, and one has a serious
incompatibility with psychological egoism.
standard understanding of psychological egoism and Bentham's
own statement of his view identifies motives of action which are
self-interested. Yet this seems, again, in conflict with his own
specification of the method for making moral decisions which is not
to focus on self-interest.
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Bentham also benefited from Hume's work, though in many ways

their approaches to moral philosophy were completely different.
Hume rejected the egoistic view of human nature. Hume also
focused on character evaluation in his system. Actions are
significant as evidence of character, but only have this derivative
significance.
In moral evaluation the main concern is that of character. Yet
Bentham focused on act-evaluation. There was a tendency
remarked on by J. B. Schneewind (1990), for example to move
away from focus on character evaluation after Hume and towards
act-evaluation. Recall that Bentham was enormously interested in
social reform.
Indeed, reflection on what was morally problematic about laws and
policies influenced his thinking on utility as a standard.
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Jeremy Bentham was a social reformer. He felt that people often had
responses to certain actions of pleasure or disgust that did not
reflect anything morally significant at all. Indeed, in his discussions of
homosexuality, for example, he explicitly notes that antipathy is not
sufficient reason to legislate against a practice:
The circumstances from which this antipathy may have taken its
rise may be worth enquiring to. One is the physical antipathy to
the offence. The act is to the highest degree odious and
disgusting, that is, not to the man who does it, for he does it only
because it gives him pleasure, but to one who thinks [?] of it. Be it so,
but what is that to him? (Bentham OAO, v. 4, 94)
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Bentham then notes that people are prone to use their physical
antipathy as a pretext to transition to moral antipathy, and the
attending desire to punish the persons who offend their taste. This is
illegitimate on his view for a variety of reasons, one of which is that
to punish a person for violations of taste, or on the basis of prejudice,
would result in runaway punishments, one should never know
where to stop The prejudice in question can be dealt with by
showing it to be ill-grounded. This reduces the antipathy to the act
in question. This demonstrates an optimism in Bentham. If a pain can
be demonstrated to be based on false beliefs then he believes that
it can be altered or at the very least assuaged and reduced.
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This is distinct from the view that a pain or pleasure based on a false
belief should be discounted. Bentham does not believe the latter. Thus
Bentham's hedonism is a very straightforward hedonism. The one
intrinsic good is pleasure, the bad is pain. We are to promote pleasure
and act to reduce pain.
When called upon to make a moral decision one measures an action's
value with respect to pleasure and pain according to the following:
intensity (how strong the pleasure or pain is),
duration (how long it lasts),
certainty (how likely the pleasure or pain is to be the result of the action),
proximity (how close the sensation will be to performance of the action),
fecundity (how likely it is to lead to further pleasures or pains),
purity (how much intermixture there is with the other sensation).
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Bentham one doesn't simply decide on good laws and leave it at

that: Lawmaking must be recognized as a continual process in
response to diverse and changing desires that require adjustment
(Rosenblum 1978, 9). A law that is good at one point in time may be
a bad law at some other point in time. Thus, lawmakers have to be
sensitive to changing social circumstances.
Felicific Calculus 10

Though Bentham did not use this terminology, the calculus he devised
commonly known as the felicific calculusdescribes the elements or
dimensions of the value of a pain or pleasure. To an individual the value
of a pain or pleasure will be more or less according to its intensity,
duration, certainty or uncertainty, and its propinquity or
remoteness. Where the object is to measure the value of a pleasure or
pain in terms of the tendency of an act, there are two additional
circumstances to be taken into account: fecundity or the chance it
has of being followed by sensations of the same kind, and purity or
the chance it has of not being followed by sensations of
the opposite kind.
Where there are a number of persons, with reference to whom the
value of a pleasure or a pain is considered, a further circumstance must
be factored into the calculus, that is the extent or the number of
persons who are affected by the pleasure or pain.
Critiques 11

Gisborne - We Cannot know All of the Consequences

One of the first criticisms of the utilitarian theory was presented by English
clergyman Thomas Gisborne (17581846). According to Gisborne, we are
incapable of knowing all of the consequences of our actions. As we
attempt to hunt down the various consequences, we will never be in a
position to discover all of the relevant effects and form a conclusion about
the overall happiness or unhappiness that results. He offers a picturesque
analogy for this point:
As well might a fisherman infer, that his line, which has reached the
bottom of the creek in which he exercises his trade, is therefore capable of
fathoming the depths of the Atlantic. . . . He, who has had sufficient humility
to become convinced. . . how few are the consequences which he can
foresee, compared with those which are wrapped in obscurity, will be the
most ready to confess his ignorance of the universal effects of his actions.
[The Principles of Moral Philosophy Investigated]
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Bradley - Utilitarianism Conflicts with Ordinary Moral Judgments

A second criticism of utilitarianism, presented by British philosopher F. H.
Bradley (18461924), is that utilitarian moral judgments often conflict with
our ordinary conceptions of moral obligation. For example, it is theoretically
possible that you cheating on your spouse will maximize general happiness.
It may make you and your lover happy, and as long as you keep it a secret,
your spouse will not be unhappy. But even in this situation our ordinary moral
judgment is that adultery is wrong:
Let us take the precept, Do not commit adultery. How are we to prove
that no possible adultery can increase the overplus of pleasurable feeling? .
. . To put the whole matter in to words; the precepts of Hedonism are only
rules, and rules may always have exceptions: they are not, and, so far as I
see, they can not be made out to be laws. [Ethical Studies, 3]

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Grote - utilitarianism bases morality only on what is the case, not on

what ought to be the case
Morality should include guidelines for moral improvement, but we
will never get such guidelines by appealing only to what is the case.
Grote makes this point here:
Man has improved as he has, because certain portions of his race
have had in them the spirit of self-improvement, or, as I have called
it, the ideal element; have been unsatisfied with what to them at
the time has been the positive, the matter of fact, the immediately
utilitarian; have risen above the cares of the day. . . [An Examination
of the Utilitarian Philosophy, 13]
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Albee - Higher Pleasures are Inconsistent with Hedonism

A final criticism focuses specifically on Mills version of utilitarianism.
We saw that the most distinctive feature of his theory is that
happiness consists of both higher and lower pleasures, and that
higher pleasures are qualitatively superior to lower ones. The
problem is that Mill appears to offer two separate standards of
general happiness: (1) pleasure and (2) dignity. If we see pleasure as
the sole criterion, then we must deemphasize dignity; if we see
dignity as the principal criterion, then we must deemphasize
pleasure.
Conclusion 15

Many philosophers as far back as ancient times believed that

pleasure is the standard by which we should judge moral conduct.
Philosophers during the 18th century refined this notion, and, with
Bentham, we find the classic statement of hedonistic utilitarianism.
According to Bentham, we determine whether an action is right by
calculating all of the pleasure and pain that results from that action.
Two lingering problems with utilitarianism, one of which is whether
pleasure is the only important moral value, and the other is that
whether any bare-bones utilitarian formula can function as the sole
authority in moral judgments.
Past Year Exam Question 16

1. Explain the general principles of Utilitarianism including reference to

both Act and Rule Utilitarianism.
2. Explain Mills Utilitarianism and how it differs from Jeremy Benthams
theory.